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ICE Must Be Held Accountable to Ensure Interior Enforcement Reforms Eliminate Constitutional Violations

Among the many humane, common sense reforms to our immigration policies the Obama administration announced last night, one that has the greatest potential to heal American communities is the reform of Immigration and

“The Secure Communities program, as we know it, will be discontinued.”

Department of Homeland Security Secretary Jeh Johnson

Customs Enforcement’s (ICE) interior enforcement strategy. Citing two pending National Immigrant Justice Center federal detainers litigation cases, ICE announced the end of the Secure Communities program.

The dismantling of Secure Communities is a significant victory for litigators and grassroots activists across the country who have worked tirelessly to demonstrate the human rights and constitutional violations wrought when ICE partners with local law enforcement to enforce federal immigration laws. It is critical, however, that the program’s replacement, the Priority Enforcement Program (PEP), is properly implemented to protect communities from further violations.

“PEP is only as good as the paper it is written on, unless ICE headquarters holds its field offices accountable to fully implement this new interior enforcement strategy in a manner consistent with the U.S. Constitution,” said NIJC National Litigation Coordinator Mark Fleming. “ICE must commit to make its rank-and-file accountable to its directives and tie professional promotion to compliance with PEP and the other reforms announced. ICE’s track record in this regard is poor, but right now we are cautiously optimistic that the culture of ICE can change.”

NIJC, along with pro bono partners Winston & Strawn LLP and McDermott Will & Emery LLP, has litigated some of the Secure Communities program’s most serious constitutional violations in Jimenez-Moreno v. Napolitano and Makowski v. United States, two cases cited in the PEP memos.

According to one of a series of prosecutorial discretion memos published Thursday on ICE’s website, PEP promises to bring the following changes to ICE’s interior enforcement practices:

  1. ICE will only seek transfer of custody of individuals from state and local criminal custody once they are convicted of a “significant misdemeanor” or greater offense. PEP eliminates one of the loopholes from previous detainer guidance that encouraged ICE to issue detainers against anyone who came into police custody and were fingerprinted and flagged in the ICE database.
  2. ICE will principally use immigration detainers as a mechanism for local law enforcement to notify the agency when an individual will be released from local custody, not to pressure local authorities to unconstitutionally extend an individual’s detention.
  3. Only under “special circumstances” will ICE seek detention pursuant to immigration detainers, and ICE commits to doing so in compliance with Fourth Amendment protections.

By moving to a post-conviction model for immigration enforcement, PEP has the potential to eliminate some of the racial profiling that Secure Communities encouraged. NIJC remains concerned, however, that in practice some local law enforcement may choose to unconstitutionally delay individuals’ release from custody in order to transfer individuals into ICE custody. The PEP guidance is silent on how ICE intends to comply with Fourth Amendment protections when it seeks these transfers. Finally, in the “special circumstances” when ICE does formally seek detention pursuant to an immigration detainer, PEP suggests that the detainer only needs to say that there is probable cause. This limited condition simply does not satisfy the Fourth Amendment requirements that ICE must articulate its grounds for detention and obtain a judicial determination of probable cause. Without these protections, U.S. citizens like the plaintiffs in Jimenez Moreno and Makowski will still be at risk of being unjustly detained.

NIJC will monitor PEP’s implementation and will continue to challenge constitutional violations that arise.